Pursuant to Rule 15(B) of the Rules of Procedure and Evidence (“Rules”),
Vidoje Blagojevic (“Applicant”) has applied to have Judges Schomburg, Mumba,
and Agius of Trial Chamber II disqualified from hearing his case because of
actual bias and the appearance of bias. Because one of the Judges Blagojevic
seeks to have disqualified, Judge Schomburg, is the Presiding Judge of the
Chamber, the matter has been referred to the Bureau.1
For the reasons given below, the Bureau denies the application.

Background

An amended indictment of Blagojevic was unsealed on 10 August 2001. He
requested provisional release, and on 22 July 2002 Trial Chamber II, composed
of the Judges who are the subjects of the present Application, denied the
motion.2 Blagojevic appealed the denial, and the
Appeals Chamber quashed the decision and remanded the matter to the Trial
Chamber.3 The Appeals Chamber found that, contrary
to one of the Appeals Chamber’s earlier decisions, the Trial Chamber had improperly
refused to consider the guarantee given by Republika Srpska concerning Blagojevic’s
return to the Tribunal.4 It directed the Trial
Chamber to reconsider its decision, taking the Republika Srpska guarantee
into account.5 On remand, the Trial Chamber again
denied the request for provisional release,6 and
Blagojevic again appealed the denial. The Appeals Chamber found that the Trial
Chamber “did not comply with the direction to take the Republika Srpska
guarantee into account in its reconsideration of Blagojevic’s application
for provisional release.”7 It observed that “it
is unnecessary for the purposes of this appeal to determine why the Trial
Chamber failed to comply with that direction. It is sufficient to say that
the failure of the Trial Chamber to comply with the direction has led to an
unfortunate and wholly unnecessary delay in reaching a proper conclusion in
relation to the liberty of Blagojevic.”8 Rather
than remanding the matter yet again, the Appeals Chamber resolved the matter
itself, finding that “in light of the finding already made Sby the Trial ChamberC
that Blagojevic’s own personal undertaking is not sufficient to demonstrate
that he will appear for trial, the Appeals Chamber is not satisfied that he
will do so even when the valid guarantee from Republika Srpska is taken into
account.”9

Blagojevic contends that the Trial Chamber’s repeated failure to follow
the governing decision of the Appeals Chamber concerning the significance
of the Republika Srpska guarantee demonstrates both actual bias and an improper
appearance of bias. Regarding actual bias, he states:

18. The history of the provisional release proceedings
establishSesC that the Trial Chamber is: a. unwilling to be bound by the
rulings of the Appeals Chamber; b. unwilling to comply with rulings of
the Appeals Chamber; c. unwilling to accept the Republika Srpska as a
legitimate State capable of providing guarantees, though it had accepted
guarantees from the Federation of Bosnia and Herzegovina; d. unwilling
at least as to the issue of provisional release, to act expeditiously;
and e. unwilling to afford Mr. Blagojevic, at all stages of the proceedings,
his fair trial rights.

19. Mr. Blagojevic asserts that there is a sufficient
basis to establish actual bias. The Trial Chamber, for whatever reason,
simply and categorically has refused to follow the law, even after being
directed and publicly reproached. The findings of the Appeals Chamber
on this point are clear, unequivocal, and final. Thus, while no concrete
reasons are discernible for the Trial Chamber’s capricious and obdurate
behavior, it begs the question: why is the Trial Chamber so adamantly
opposed to following the decisions and directions of the Appeals Chamber
– that it is unequivocally bound by – when it comes to the issue of provisional
release of Mr. Blagojevic?10

Concerning the appearance of bias, he asserts:

19. Further, when considering the circumstances, certain
plausible inferences can be drawn, all of which demonstrate the existence
of an unacceptable appearance of bias. How can any accused before the
Tribunal have any confidence in the Trial Chamber that will hear and decide
his case, knowing that during the pre-trial stage of the proceedings,
the Trial Chamber not only refused to apply the law that it was bound
to apply, but moreover, it had repeatedly refused to abide by the directions
of the Appeals Chamber, to which it was and remains accountable.11

The Prosecution offers two responses to Blagojevic’s claims. As a preliminary
matter, it seeks the dismissal of Blagojevic’s application on the ground that
it should not be filed pursuant to Rule 15(B), but instead should be submitted
as a motion to the Trial Chamber under Rule 73. 12
The Prosecution contends that applications for disqualification under Rule
15(B) should be limited to those based on the grounds mentioned expressly
in Rule 15(A ), namely circumstances “in which the Judge has a personal interest
or concerning which the Judge has or has had any association which might affect
his or her impartiality.” Because Blagojevic’s application rests not on these
grounds but instead on the challenged Judges’ decisions in his own case, Rule
15(B) does not apply.13 The Prosecution also
argues that allowing disqualification motions to proceed under Rule 73, will,
particularly for those arising at the pre-trial stage, serve “the interests
of judicial economy and justice” by avoiding the possibility of having a claim
of disqualification ruled on twice, once by the Bureau and once by the Appeals
Chamber when the same issue may be raised on appeal from the Trial Chamber’s
Judgement.14

On the merits, the Prosecution argues that the Trial Chamber’s decisions
do not substantiate the Applicant’s charges of actual or apparent bias.15
The Prosecution notes that the Appeals Chamber ultimately agreed with the
Trial Chamber that Blagojevic’s request for provisional release should be
denied. And, in an effort to show that the Trial Chamber has not displayed
a pattern of refusing to follow the Appeals Chamber’s decisions, it offers
at least one example in which the Trial Chamber, over the objection of the
Prosecution, certified a question for interlocutory appeal.

Discussion

Article 21(2) of the Statute guarantees defendants “a fair and public hearing,”
and, as the Appeals Chamber of this International Tribunal (“ICTY”) has recognized,
“an integral component” of the fair trial guarantee is “the fundamental human
right to be tried before an independent and impartial tribunal.”16
Article 13(1) of the Statute accordingly provides, in relevant part, that
judges of the Tribunal “shall be persons of high moral character, impartiality
and integrity.”

Rule 15(A) of the Rules, governing disqualification of judges, provides,
in relevant part, that “SaC Judge may not sit on a trial or appeal in a case
in which the Judge has a personal interest or concerning which the Judge has
had any association which might affect his or her impartiality.” Rule 15(B)
authorizes “SaCny party ” to apply to the Presiding Judge of a Chamber for
the disqualification of a Judge of that Chamber “upon the above grounds.”

In interpreting and applying the impartiality requirement of the Statute
and the Rules, the Appeals Chamber of the ICTY has set out the following standards:

A. A Judge is not impartial if it is shown that actual bias exists.
B. There is an unacceptable appearance of bias if:
i) a Judge is a party to the case, or has a financial or proprietary interest
in the outcome of a case, or if the Judge’s decision will lead to the
promotion of a cause in which he or she is involved, together with one
of the parties. Under these circumstances, a Judge’s disqualification
from the case is automatic; or
ii) the circumstances would lead a reasonable observer, properly informed,
to reasonably apprehend bias.17

Before considering the merits of the Applicant’s motion, the Bureau must
consider the Prosecution’s preliminary objection that the motion should be
submitted to the Trial Chamber under Rule 73 rather than to the Bureau under
Rule 15. The Prosecution’s arguments have some force. It is true that, narrowly
construed, the terms of Rules 15(A) and 15(B) might most naturally be read
as excluding disqualification motions based on the conduct of the Judge in
the very case in which the disqualification is sought.18
And while Presiding Judges and the Bureau have repeatedly treated actions
by the challenged Judge in another judicial or administrative proceeding as
constituting an “association” within the meaning of Rule 15(A),19
the Bureau is unaware of any example in the ICTY’s case law in which a Presiding
Judge or the Bureau has ruled on a disqualification motion grounded on the
conduct of the challenged Judge in the proceeding in which the disqualification
is sought. Moreover, as the Prosecution points out, it may be more efficient
in some cases to ensure that a disqualification motion reaches the Appeals
Chamber early on via interlocutory appeal rather than leaving the issue, already
addressed by the Presiding Judge or the Bureau, to be addressed again in the
appeal from the Trial Chamber’s Judgement.

Nonetheless, the Bureau ultimately finds the Prosecution’s arguments unconvincing.
First, in the Bureau’s view, the ICTY Appeals Chamber has not interpreted
Rule 15 narrowly, in the manner suggested by the Prosecution, but has instead
interpreted Rule 15 broadly as co-terminous with the statutory requirement
of impartiality and thus as including within its scope all the possible bases
for disqualification noted in paragraph 8 of this decision. In Furundzija,
the Appeals Chamber did devote much of its discussion to the statutory
requirement of impartiality. But then, having set out the encompassing
standards of impartiality mentioned in paragraph 8 above, it quoted Rule 15(A)
in full and stated: “The Appeals Chamber is of the view that Rule 15(A) falls
to be interpreted in accordance with the... preceding principles[,]” i.e.,
those outlined in paragraph 8 above.20 Similarly,
in Celebici, the Appeals Chamber characterized the statutory requirement
of impartiality as being “reflected in Rule 15(A).”21
Citing the Furundzija Appeals Chamber Judgement’s elaboration of the
broad standards noted in paragraph 8 above, it stated that “[t]his Rule
has been interpreted by the Tribunal as encompassing circumstances establishing
both actual bias and an appearance or a reasonable apprehension of bias.”22

Second, this interpretation of Rule 15(A) has apparently been endorsed
by the Bureau of the International Criminal Tribunal for Rwanda (“ICTR”),
whose Rule 15 (A) is, in relevant part, indistinguishable from the ICTY’s.23
In Bagosora, the ICTR Bureau did not hesitate to adjudicate a disqualification
application made pursuant to Rule 15 in which the basis for motion was the
challenged judges’ conduct in the very proceeding in which the disqualification
was sought.24

Third, as the Prosecution implicitly seems to acknowledge,25
while there might be some logic, in terms of judicial economy, to distinguish
procedural avenues for disqualification motions based on when in the course
of the proceedings the motion is raised, there would seem to be little logic
to distinguishing based on the substantive basis for the motion.

The Bureau thus turns to the merits of Blagojevic’s Application. As for
actual bias, what both the ICTY and ICTR Appeals Chambers have said with respect
to a claim of appearance of bias applies with equal force: “[T]here is a presumption
of impartiality which attaches to a Judge.... [I]n the absence of evidence
to the contrary, it must be assumed that the Judges of the International Tribunal
‘can disabuse their minds of any irrelevant personal beliefs or predispositions.’
It is for the Appellant to adduce sufficient evidence to satisfy the Appeals
Chamber that [the Judge in question] was not impartial in his case. There
is a high threshold to reach in order to rebut the presumption of impartiality.”26

The Applicant here has failed to rebut that presumption. While the Bureau
would not rule out entirely the possibility that decisions rendered by a Judge
or Chamber by themselves could suffice to establish actual bias, it would
be a truly extraordinary case in which they would. This is not such an extraordinary
case. The Trial Chamber’s apparent intransigence in the face of the Appeals
Chamber’s express direction on remand is unfortunate, but the Bureau does
not find in the Trial Chamber’s conduct evidence of bias against the Applicant.
A more likely explanation for the Trial Chamber’s actions readily suggests
itself. Having reviewed the series of decisions in question, the Bureau is
of the view that the Trial Chamber’s behavior resulted from its disagreement
with the Appeals Chamber on a point of law about which reasonable jurists
could certainly differ – namely, the status of guarantees from Republika Srpska
– and its inadequate appreciation of the binding effect of Appeal Chamber
decisions on Trial Chambers.27 The Trial Chamber’s
refusal to take completely to heart the binding character of Appeals Chamber
decisions is unfortunate, but the Bureau finds no evidence of bias against
the applicant in that refusal.

In the Tribunal’s case law, as noted above, there are two possible grounds
for establishing an improper appearance of bias. The applicant bases his claim
on the second of those grounds. He claims that “a reasonable observer, properly
informed” would “reasonably apprehend bias” on the part of Judges Schomburg,
Mumba, and Agius. For reasons similar to those leading to the Bureau’s rejection
of the applicant’s charge of actual bias, the Bureau also finds his charge
of improper appearance of bias unconvincing. The Bureau finds that a reasonable
observer, properly informed, would share its conclusion that the Trial Chamber’s
conduct flowed not from bias against the Applicant but from disagreement with
the Appeals Chamber over a legal issue and inadequate appreciation of the
principle that Appeals Chamber decisions are binding on Trial Chambers. In
this instance, those views led the Trial Chamber to a decision against the
Applicant (a decision whose result, it should be noted, the Appeals Chamber
ultimately affirmed.) But disagreement with the Appeals Chamber on a point
of law and a misunderstanding of the binding character of its decisions might
well have led the Trial Chamber in another instance to a conclusion favoring
the Applicant. Even when a Trial Chamber disregards an Appeals Chamber’s decision,
it would take a more extended pattern of decisions uniformly favoring one
party before the Bureau could find that a reasonable observer could reasonably
apprehend bias against the other party.

1 - Rule 15(B) provides: “Any party may apply
to the Presiding Judge of a Chamber for the disqualification and withdrawal of
a Judge of that Chamber from a trial or appeal upon the above grounds. The Presiding
Judge shall confer with the Judge in question, and if necessary the Bureau
shall determine the matter. If the Bureau upholds the application, the President
shall assign another Judge to sit in place of the disqualified Judge.” (emphasis
added). For an example of an application directed against a Presiding Judge and
referred to the Bureau, see Prosecutor v. Kordic and Cerkez, IT-95-14/2-PT,
Decision of the Bureau, 4 May 1998. Judge Schomburg, as the Presiding Judge of
Trial Chamber II, normally sits as a member of the Bureau. See Rule 23(A). Because
the application under review is directed against him, the Bureau decided, pursuant
to Rule23 (E), to replace Judge Schomburg with Judge Jorda for the consideration
of the application. Rule 23(E) provides that “[i]f any member of the Bureau is
unable to carry out any of the functions of the Bureau, these shall be assumed
by the senior available Judge determined in accordance with Rule 17.” Judge Jorda
is the senior available judge. 2 - Decision on Vidoje Blagojevic’s Application for Provisional
Release, IT-02-60-PT, 22 July 2002. 3 - Decision on Provisional Release of Vidoje Blagojevic and
Dragan Obrenovic; Separate Opinion of Judge David Hunt on Provisional Release
of Vidoje Blagojevic and Dragan Obrenovic; and Declaration of Judge Shahabuddeen,
IT-02-60-AR65 & IT-02060-AR65.2, 3 October 2002. 4 - Id., paras. 6-7. 5 - Id., para. 8. 6 - Decision on Vidoje Blagojevic’s Application for Provisional
Release, IT-02-60-PT, 19 November 2002. 7 - Decision on Provisional Release Application of Blagojevic,
IT-02-60-AR65.4, 17 February 2003, para. 14. 8 - Id. 9 - Id., para. 18. 10 - Vidoje Blagojevic’s Motion to Disqualify the Trial Chamber
(Judges Sch[o]mburg, Mumba and Agius) on the Grounds of Actual Bias and an Unacceptable
Appearance of Bias & Request for This Matter to Be Referred to the Bureau for
its Determination & Request for an Expedited Hearing, IT-02-60-PT, 26 Feb. 2003,
paras. 18-19 (“Application”). 11 - Id., para. 20. 12 - Prosecution’s Response to Vidoje Blagojevic’s Motion to
Disqualify the Trial Chamber, IT-02-60-PT, 12 March 2003, paras. 9-18 (“Respone”).
13 - Id., paras. 16-17. 14 - Id., para. 9 15 - Id., paras. 19-27. 16 - Furundzija Appeals Chamber Judgement, para. 177
& n.239. 17 - Id., para. 189. 18 - This interpretation would be consistent with the so-called
extrajudicial source doctrine in the United States, according to which actions
by a judge in the proceeding at hand are considered insufficient by themselves,
as a matter of law, to support the judge’s disqualification from that proceeding.
The doctrine has in fact been relaxed recently by the Supreme Court of the United
States. See Litecky v. United States, 510 U.S. 540, 554-56 (1994). 19 - See Prosecutor v. Brdanin & Talic, IT-99-36-PT,
Decision on Application of Momir Talic for the Disqualification and Withdrawal
of a Judge, 18 May 2000; Prosecutor v. Delalic, Mucic, Delic & Landzo,
IT-96-21-T, Decision of the Bureau on Motion to Disqualify Judges Pursuant to
Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25 Oct. 1999;
Prosecutor v. Kordic & Cerkez, IT-95-14/2-PT, Decision, 4 May 1998. 20 - Furundzija Appeals Chamber Judgement, para. 191.
21 - Celebici Appeals Chamber Judgement, para. 682.
22 - Id. (emphasis added). 23 - Rule 15(A) of the Rules of Procedure and Evidence of the
ICTR provides, in relevant part: “A judge may not sit at a trial or appeal in
any case in which he has a personal interest or concerning which he has or has
had any association which might affect his impartiality. He shall in any such
circumstance withdraw from that case.” 24 - Prosecutor v. Bagosora, ICTR-98-41-I, Determination
of the Bureau Pursuant to Rule 15(B), 20 Feb. 2002. 25 - See Response, para. 9. 26 - Furundzija Appeals Chamber Judgement, paras. 196-197;
see Akayesu Appeals Chamber Judgement, para. 91; cf, e.g., Castillo Algar v.
Spain, 1998 EHRR xxx (28 Oct. 1998). 27 - The Appeals Chamber established the binding effect of
its decisions on Trial Chambers nearly three years ago in the Aleksovski
Appeals Chamber Judgement, para. 113. 28 - Although the Applicant mentions a request for an expedited
hearing in the title of the Application, he does not make the request in the body
of the Application. See esp. Application, para. 28. To the extent that the Application
requests a hearing, the request is denied.